If I move out of the home and leave my children there with the abuser, can this affect my chances of gaining custody?
Depending on how long you wait to file custody after moving out, it may be possible that a judge may consider the fact that the other parent has been solely taking care of the children in your absence as a factor when making a custody decision. Before you leave an abusive relationship, you may want to get help to make a plan that will allow you to safely and legally take the children with you when you leave. If you want help doing this, you may want to talk to a lawyer who has experience with domestic violence and custody issues and/or a domestic violence advocate in your area. See our NY Places that Help page.
However, you may also be able to convince the judge to consider your reason for leaving the home. If you left your home to escape domestic violence, a judge has to consider the effect that domestic violence has upon the best interests of the child when making a custody determination.1 (However, if you argue that the other parent is abusive and should not be around the children, a judge may question why you’d leave your children with him/her.) It is possible that if the abuser got a temporary custody order based on your absence from the home, a judge may shift custody to the other parent during the eventual custody trial. Bear in mind, however, that court cases sometimes drag on for months, or even years, during which time you might not have your children living with you. It is generally best to have a lawyer representing you in any custody case, especially one where you may be trying to fight for your children to be switched from the abuser’s temporary custody to yours. Go to our NY Finding a Lawyer for legal referrals.
1 NY Dom Rel Law § 240(1)(a)